Citation Nr: 0432270
Decision Date: 12/06/04 Archive Date: 12/15/04
DOCKET NO. 04-26 829 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Ella Krainsky, Associate Counsel
INTRODUCTION
The veteran had active service from February 1966 to January
1968.
This appeal arises from a February 2004 rating decision by
the San Juan, the Commonwealth of Puerto Rico Regional Office
(RO) of the Department of Veterans' Affairs which denied
service connection for the cause of the veteran's death.
In September 2004, the Board received a motion, submitted by
the appellant, to advance this case on the Board's docket.
The motion to advance the appeal was granted. Accordingly,
the Board will proceed without further delay.
FINDINGS OF FACT
1. The veteran died in September 2003, at the age of 58. The
certificate of death listed the immediate cause of death as
ischemic cardiomyopathy. No contributing conditions were
listed on the certificate.
2. At the time of the veteran's death, service-connection
was not in effect for any disability.
3. There is no competent medical evidence of a nexus between
the cause of the veteran's death and any injury or disease,
to include exposure to herbicide including Agent Orange,
during the veteran's service.
CONCLUSION OF LAW
A disability incurred in or aggravated by service did not
cause or contribute substantially or materially to cause the
veteran's death. 38 U.S.C.A. §§ 1310 (West 2002); 38 C.F.R.
§§ 3.312 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. VCAA
With the enactment of the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-4 75, 114 Stat. 2096 (2000),
there has been a change in the law applicable to veterans'
claims for benefits. This law eliminated the concept of a
well-grounded claim, redefined the obligations of VA with
respect to the duty to assist, and superseded the decision of
the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order) (holding that VA cannot assist in the
development of a claim that is not well grounded). The law
also included an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. The VCAA was implemented with the adoption
of new regulations. See 38 C.F.R. §§ 3.102, 3.159, and
3.326(a) (2004).
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7,
subpart (a), 114 Stat. 2096, 2099 (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
The Board finds that no further development is required.
First, VA has a duty to notify the appellant and her
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C. §§ 5102 and 5103 (West 2002). The appellant was
notified in the RO's February 2004 decision that the criteria
for entitlement to service connection for the cause of the
veteran's death had not been met. This notice also informed
the appellant of the reasons and bases for the RO's decision.
In December 2003, the appellant received notice of a
description of what the evidence must show to establish
entitlement to service connection. Finally, the appellant
received a statement of the case which further described the
standard for adjudicating her claim. VA has no outstanding
duty to inform the appellant that any additional information
or evidence is needed. The Board concludes that the
discussions in the RO decision, the VCAA letter, and SOC sent
to the appellant notified her of the information and evidence
needed to substantiate the claim and complied with VA's
notification requirements. See Quartuccio v. Principi, 16
Vet. App. 183 (2002).
In addition, the CAVC's decision in Pelegrini v. Principi, 18
Vet. App. 112 (2004) held, in part, that the implementing
regulation for VA's section 5103 notice requires language to
the effect of "give us everything you've got pertaining to
your claim(s)." See 38 C.F.R. § 3.159(b)(1) (2003). The
Pelegrini Court also held that a section 5103 notice must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits.
In this case, the initial AOJ decision was made in February
2004, after the appellant received VCAA notice in December
2003. The RO's December 2003 letter also notified the
appellant of VA's duty to develop her claim pursuant to the
VCAA's provisions, to include the duties to develop for
"relevant records from any Federal agency" and those not
held by a federal agency. This VCAA notice, combined with
the statements of the case, clearly complies with the section
5103 content requirements, to include 38 C.F.R. §
3.159(b)(1).
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.
§ 5103A (West 2002). The RO has requested and obtained
service medical records from the National Personnel Records
Center (NPRC). In addition, the RO obtained the veteran's
treatment records from VA and private medical facilities.
The claims file does not contain an opinion relating the
veteran's death to any incident of service. Therefore, a
remand for a medical opinion is not necessary to decide the
claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4)
(2003); Wells v. Principi, 326 F.3d 1381, 1384 (Fed.Cir.
2003). Accordingly, the Board finds that there is no
reasonable possibility that any further assistance would aid
the veteran in substantiating this claim.
In the circumstances of this case, further development would
serve no useful purpose. See Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991) (strict adherence to requirements in the
law does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
notify and to assist the appellant in this case.
II. Service Connection for the Cause of the Veteran's Death
A. Factual Background
The veteran's service records indicate that the veteran
served in Vietnam for one year. The veteran's service
medical records do not show complaints, treatment or a
diagnosis involving any heart condition or other significant
disease or injury. On examination for separation from
service, no pertinent abnormality was detected.
In July 1990, the Claims Administrator of the Agent Orange
Veteran Payment Program Fund determined that the veteran was
totally disabled and that his exposure to herbicide spraying
had been certified. The veteran was awarded benefits under
the program.
The post-service medical evidence includes March 1986 records
diagnosing adult polycystic kidney disease from Hospital
Metropolitano. In January 1988, the veteran underwent a VA
examination which showed deteriorating renal function but no
cardiovascular abnormalities. By May 1991, the veteran was
undergoing dialysis. In July 1991, the veteran was receiving
treatment at the Midwest Dialysis Center in Milwaukee,
Wisconsin. He told a physician that his kidney disease was
discovered when he came to the hospital in March 1986 with
hypertension. At the Dialysis Center, the veteran was
diagnosed with autosomal dominant adult polycystic kidney
disease and hypertensive heart disease.
The claims file contains records from the San Juan VAMC.
When the veteran began dialysis treatment in June 1991, he
suffered a collapsed lung. The records showed the veteran
had pain on the left side of his chest and shortness of
breath when a catheter was placed on his right side. This
catheter was removed and another catheter was inserted
several days later. Although the veteran did not feel chest
pain at that time, an X-Ray indicated that his left lung had
collapsed and he was hospitalized for several days. The
veteran did not have breathing problems after the operation.
In April 1992, the veteran underwent a kidney transplant. In
August 1992, the veteran was examined for post-traumatic
stress disorder. The examiner noted that the veteran denied
any major medical problems except his kidney disease.
However, the veteran was taking Isoptin, a heart medication.
The veteran also underwent a general VA medical examination
at this time. He reported that since his kidney transplant,
he had recurring episodes of palpitations or tachycardia,
leaving him short of breath.
In March 1993, the veteran underwent another VA examination.
He complained of shortness of breath after walking three or
four minutes and occasional coughing. The veteran explained
that his condition began after he suffered a collapsed lung
when his dialysis treatment was initiated. The examiner
reviewed the medical records from the San Juan VAMC in June
1991. He also conducted pulmonary function tests which
showed minimal restrictive disease. Chest X-Rays showed no
residual lung damage from the collapse. The examiner
concluded that there was no pulmonary explanation for the
veteran's current symptoms and his shortness of breath might
be related to his kidney problems.
In October 1994, the veteran sought treatment in a VA medical
center for palpitations. He had altered cardiac functioning,
pain in the center of his chest, and dizziness. He reported
a history of heart disease and hypertension. High blood
pressure was shown repeatedly in medical records throughout
the claims file.
The veteran wrote to the RO in September 1997. He stated
that the had skin sarcomas, muscular pains, kidney pain,
nervousness, warts, high blood pressure, blood in the urine,
cysts in the liver, and insomnia. He attributed all of these
conditions to exposure to Agent Orange in Vietnam. In
December 1997, the veteran was admitted to the VA hospital
with superventricular tachycardia. He was treated with
medication and discharged. In January 1998, the veteran had
a squamous cell cancer lesion removed from the left side of
his nose. Additional squamous cells were removed from the
same area in April and August of 1998. An area of skin
showing actinic keratosis was removed from the left
submandibular area in November 1998. In February1998, the
veteran was again hospitalized with palpitations and
superventricular tachycardia.
In November 1998, the veteran was examined in a VA hospital
after having palpitations. Heart monitoring indicated a
sixteen second pause in his heart rate with no associated
symptoms. In May 1999, the veteran was hospitalized with
laryngitis/pharyngitis and left lower lobe pneumonia. An
examination revealed no cardiovascular problems and regular
rhythm and rate. In August 1999, the veteran's heart rate
showed very rare episodes of premature atrial and ventricle
contractions and several episodes of sinus tachycardia. The
veteran underwent ablation in November 1999. Since that
time, he reported dizziness and palpitations with exertion
and effort (ischemic contraction.) In June 2000, the veteran
again had palpitations and dizziness. He was diagnosed with
paroxysmal superventricular tachycardia and high blood
pressure and status post cardiovascular ablation.
In January 2003, areas of squamous cell cancer were removed
from the veteran's left arm and chest at the VAMC. In March
2003, the veteran's doctor advised him to avoid exposure to
sunlight and attributed the veteran's multiple carcinomas to
his years of exposure to the sun while playing baseball as a
young man.
In August 2003, the veteran was treated for hematuria.
Medical tests showed no evidence of rejection, vascular
compromise, or hydronephrosis of the kidneys. The veteran
had multiple hepatic and right native kidney renal cysts and
left native kidney nephrolithiasis. In April 2003, the
veteran sought treatment at the VAMC for septic arthritis and
end stage renal disease. It appears that the veteran had run
out of steroids and, as a result, the medication that was
used to treat his elbow may have temporarily injured his
kidney (Indomethacin.) The veteran was treated with steroids
for acute kidney rejection. His renal function improved and
tests showed a mild impairment of renal perfusion to the
kidney and moderate diminished GFR function. In June 2003
the veteran came to the hospital because his foot had turned
a bluish color. He was diagnosed with bilateral
atherosclerosis disease without significant stenosis. In
August 2003, the veteran again underwent surgery to remove a
squamous cell carcinoma from his cheek.
In September 2003, the veteran was admitted to the University
of Puerto Rico Hospital. He was hypotensive with chest
pains. An electrocardiogram revealed a left bundle branch
block. Although the veteran was treated with medication, his
heart rate continued to drop and he lost his pulse. In spite
of aggressive resuscitation, the veteran did not regain a
pulse and was declared dead on September 28, 2003. The final
diagnoses were cardiorespiratory arrest, chest pain, and
hypotension.
In April 2004, the veteran's spouse testified before a
Decision Review Officer. She reported that her husband had
been treated for a heart condition since 1986. In addition,
the appellant explained that her husband suffered from skin
cancer, a loss of muscle mass, arthritis, damaged discs,
multiple sclerosis, kidney disease, pancreatitis, a swollen
prostate, headaches, and throat pain. She attributed all of
these conditions to the veteran's military service.
B. Analysis
The appellant argues that the veteran developed conditions
that contributed to his death as a result of his service.
Specifically, she argues that the veteran developed these
conditions as a result of his exposure to herbicides during
service in Vietnam.
In order to establish service connection for cause of death,
the evidence of record must show that a disability incurred
in or aggravated by active service either caused or
contributed substantially or materially to cause death. 38
U.S.C.A. § 1310 (West 2002). The VA regulation implementing
the cause of death statute, 38 C.F.R. § 3.312, reads as
follows:
(a) General. The death of a veteran will
be considered as having been due to a
service- connected disability when the
evidence establishes that such disability
was either the principal or a
contributory cause of death. The issue
involved will be determined by exercise
of sound judgment, without recourse to
speculation, after a careful analysis has
been made of all the facts and
circumstances surrounding the death of
the veteran, including, particularly,
autopsy reports.
(b) Principal cause of death. The
service- connected disability will be
considered as the principal (primary)
cause of death when such disability,
singly or jointly with some other
condition, was the immediate or
underlying cause of death or was
etiologically related thereto.
(c) Contributory cause of death. (1)
Contributory cause of death is inherently
one not related to the principal cause.
In determining whether the service-
connected disability contributed to
death, it must be shown that it
contributed substantially or materially;
that it combined to cause death; that it
aided or lent assistance to the
production of death. It is not
sufficient to show that it causally
shared in producing death, but rather it
must be shown that there was a causal
connection.
(2) Generally, minor service-connected
disabilities, particularly those of a
static nature or not materially affecting
a vital organ, would not be held to have
contributed to death primarily due to
unrelated disability. In the same
category there would be included service-
connected disease or injuries of any
evaluation (even though 100 percent
disabling) but of a quiescent or static
nature involving muscular or skeletal
functions and not materially affecting
other vital body functions.
(3) Service-connected diseases or
injuries involving active processes
affecting vital organs should receive
careful consideration as a contributory
cause of death, the primary cause being
unrelated, from the viewpoint of whether
there were debilitating effects and
general impairment of health to an extent
that would render the person materially
less capable of resisting the effects of
other disease or injury primarily causing
death. Where the service-connected
condition affects vital organs as
distinguished from muscular or skeletal
functions and is evaluated as 100 percent
disabling, debilitation may be assumed.
(4) There are primary causes of death
which by their very nature are so
overwhelming that eventual death can be
anticipated irrespective of coexisting
conditions, but, even in such cases,
there is for consideration whether there
may be a reasonable basis for holding
that a service-connected condition was of
such severity as to have a material
influence in accelerating death. In this
situation, however, it would not be
reasonable to hold that a service-
connected condition accelerated death
unless such condition affected a vital
organ and was of itself a progressive or
debilitating nature.
Service connection connotes many factors but basically means
that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with active service, or if preexisting
such service, was aggravated therein. 38 C.F.R. § 3.303(a)
(2003). See 38 U.S.C.A. § 1110 (West 2002). For the showing
of chronic disease in service, there is required a
combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at that time. 38 C.F.R. § 3.303(b) (2003).
Certain chronic diseases, such as hypertension,
arteriosclerosis, renal disease, or cancer which manifest to
a degree of 10 percent or more within one year from
separation from active service ( a seven year presumptive
period is provided for multiple sclerosis) may be service
connected even though there is no evidence of such disease
during the period of service. 38 U.S.C.A. § 1112 (West
2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2003). The factual
basis may be established by medical evidence, competent lay
evidence or both. 38 C.F.R. § 3.307(b) (2003). Medical
evidence should set forth the physical findings and
symptomatology elicited by examination within the applicable
period. Id. Lay evidence should describe the material and
relevant facts as to the veteran's disability observed within
such period, not merely conclusions based upon opinion. Id.
VA regulation also delineates the following prohibition of
certain presumptions:
No presumptions may be invoked on the basis of advancement of
the disease when first definitively diagnosed for the purpose
of showing its existence to a degree of 10 percent within the
applicable period. This will not be interpreted as requiring
that the disease be diagnosed in the presumptive period, but
only that there be then shown by acceptable medical or lay
evidence characteristic manifestations of the disease to the
required degree, followed without unreasonable time lapse by
definite diagnosis. Symptomatology shown in the prescribed
period may have no particular significance when first
observed, but in the light of subsequent developments it may
gain considerable significance. Cases in which a chronic
condition is shown to exist within a short time following the
applicable presumptive period, but without evidence of
manifestations of within the period, should be developed to
determine whether there was symptomatology which in
retrospect may be identified and evaluated as manifestations
of the chronic disease to the required 10-percent degree.
The consideration of service incurrence provided for the
chronic diseases will not be interpreted to permit any
presumption as to aggravation of a preservice disease of
injury after discharge. 38 C.F.R. § 3.307(c) (2003).
Diseases associated with exposure to certain herbicide
agents, listed in 38 C.F.R. § 3.309(e), will be considered to
have been incurred in service under the circumstances
outlined in that section even though there is no evidence of
such disease during the period of service. If a veteran was
exposed to an herbicide agent during active military, naval,
or air service, the following diseases shall be service-
connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii)
are met, even though there is no record of such disease
during service, provided further that the rebuttable
presumption provisions of 38 C.F.R. § 3.307(d) are also
satisfied: Type 2 diabetes; Chloracne or other acneform
disease consistent with chloracne; Hodgkin's disease; non-
Hodgkin's lymphoma; acute and subacute peripheral neuropathy;
porphyria cutanea tarda; prostate cancer; multiple myeloma,
respiratory cancers (cancers of the lung, bronchus, larynx,
or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e).
The diseases listed at 38 C.F.R. § 3.309(e) must have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne, porphyria cutanea tarda, and acute
and subacute peripheral neuropathy must have become manifest
to a degree of 10 percent or more within a year, and
respiratory cancers within 30 years, after the last date on
which the veteran was exposed to an herbicide agent during
active military, naval, or air service. 38 C.F.R. §
3.307(a)(6)(ii).
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit has determined that the
Veterans' Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, §
5, 98 Stat. 2725, 2727-29 (1984), does not preclude
establishment of service connection with proof of actual
direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir.
1994).
The Board has determined that service connection for the
cause of the veteran's death is not warranted. The service
medical records do not show that he developed a heart
condition during service, nor was any of the other chronic
diseases treated after service shown during service or for
many years thereafter. There is no competent evidence of a
nexus between the veteran's service and the condition listed
on his death certificate, and the death certificate does not
list any other condition that contributed substantially or
materially to cause the veteran's death. Furthermore, even
if contributing causes of death were shown, there is no
competent medical evidence relating the veteran's kidney
disease, hypertension, or any other condition to the
veteran's military service. A review of the record shows
that the veteran's chronic health problems required treatment
in the mid-1980's, about twenty years after service
separation.
Additionally, the Board observes that the veteran was not
diagnosed with any of the diseases presumptively related to
exposure to Agent Orange. Ischemic cardiomyopathy is not one
of the presumptive conditions listed in 38 C.F.R. § 3.309(e).
Furthermore, there is no competent evidence of a nexus
between the veteran's exposure to an herbicide while in
service and the condition listed on his death certificate.
Moreover, there is no competent medical opinion from any
physician indicating that the cause of the veteran's death,
or conditions contributing to his cause of death, were
related to exposure to Agent Orange. The Board notes that
while the veteran was awarded benefits under the Agent Orange
Veteran Payment Program Fund, the criteria for eligibility
for that program are only (1) that the veteran had military
service, (2) that he was exposed to Agent Orange, and (3)
that the veteran was totally disabled. See Winsett v. West,
11 Vet. App. 420 (1998). A veteran may have received
benefits under that program without showing his disability
was due to exposure to Agent Orange. Id. Therefore, the
fact that the veteran was awarded benefits does not
constitute evidence of a nexus between any condition and
exposure to Agent Orange.
In reaching this decision, the Board has considered the
appellant's assertions. However, the issues in this case
ultimately rest upon interpretations of medical evidence and
conclusions as to the cause of the veteran's death. In such
cases, laypersons untrained in the field of medicine are not
competent to offer such opinions. Espiritu v. Derwinski, 2
Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993). The Board has determined that service connection for
the cause of the veteran's death is not warranted. To that
extent, the contentions of the appellant are unsupported by
competent evidence.
Given the foregoing, the Board finds that the preponderance
of the evidence is against the claim, and that the claim of
entitlement to service connection for the cause of the
veteran's death must be denied. See 38 C.F.R. § 3.312. The
Board has also considered the benefit-of-the-doubt rule in
reaching this decision. However, as the preponderance of the
evidence is against the appellant's claim, such rule is not
for application in this case. 38 U.S.C.A. § 5107(b); Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for the cause of the veteran's death is
denied.
____________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
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2003
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
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